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A FRESH LOOK AT SCV STATISTICS

[Posted April 19, 2016] It’s been a while since I explored the Supreme Court of Virginia’s annual statistical report. I have the numbers from 2015 now, so let’s see what’s cookin’ up there. I’ll give you some of the raw data, but will try to translate it for those of you who were English majors.

I intend to post this essay in two parts. The first one, below, will give you that raw data and the translation. The second, which I’ll likely post later this week, will include some observations about what’s behind these trends, and what can be done about some of the troubling ones.

Incoming caseload

This trend has been alarming for several years now. Roughly 15 years ago, you could count on a steady arrival of about 3,000 new appeals every year. It bounced around between 2,900 and 3,100, but that was just a minor wobble; the overall trend was secure.

Those days are histoire. By calendar year 2010, we were under 2,500. The number fell every year after that until 2014, when we hit bottom with just 1,918 new filings. That tide finally turned last year, when SCV Clerk Trish Harrington opened 1,996 new files, a 4% increase over the previous year’s low-water mark. But we’re still down roughly 33% since the arrival of the court’s current senior member, Chief Justice Lemons, in 2000. For those of us who make our livings at Ninth and Franklin, business is down, big time.

Output – opinions and orders

Here again, the figures are way down, and the decline is even steeper than with new case filings. From 1995 through 2001, the court averaged 150 published opinions and 83 unpubs per year, so the justices were deciding over 230 cases on the merits each year.

Those figures look enormous in comparison with modern statistics. Last year, the court handed down 70 published opinions and 60 unpublished orders, just 130 merits decisions in all. That’s actually up noticeably since the nadir of 2013 (64 opinions and 44 orders). The upshot is that you aren’t getting anywhere near as much guidance from the justices on the contours of Virginia law.

Now let’s turn to the major components of the court’s docket.

Criminal appeals

One quick note here: I’ve decided to lump the sexually-violent-predator docket with criminal cases instead of civil, although those are technically civil petitions.

I was a bit surprised to find that criminal appeals in the SCV are down significantly: 728 petitions decided in 2015, down from 1,016 in 2012. That’s a 28% drop in just 36 months. It looks as though criminal appellants are deciding it’s just not productive to appeal on from the Court of Appeals.

The statistics bear out that perception. The justices granted just 22 criminal petitions and refused or dismissed 706 in 2015, for a grant rate of about 3%. When you factor in the subsequent affirmance rate (roughly 40%) on the merits, criminal appellants manage to secure a reversal about 2% of the time, or in one case out of fifty.

Habeas corpus

I’ll mention first that there are two components to the court’s habeas docket – appeals from lower courts and original jurisdiction (OJ) petitions. That’s because Virginia law allows a petitioner to file a habeas-corpus petition in the Supreme Court in the first instance, if he or she chooses to do that.

Nevertheless, the court grants very few writs. For both appeals and OJ cases, the grant rate is in single digits. In 2015, the court granted 7.6% of habeas appeals and 4.3% of OJ habeas petitions. If that makes you conclude that you’re better off starting in a lower court, I offer the caveat that the sample size is too small to draw that conclusion; there were just 11 OJ writs and six habeas-appeal writs granted in 2015. That being said, your odds of getting a habeas writ are better than your odds of winning a direct appeal, as noted above.

Civil appeals

Here’s where the biggest change has occurred since the calendar turned to the 21st Century. In 2000, the court granted 171 civil writs out of the 622 it acted upon – about 28%. In 2015, the writ-granted rate was – brace yourself – 14.7%. If that statistic doesn’t stun you, try switching from decaf to high-test.

This trend is attention-grabbing for those of us who primarily handle civil appeals. There has never, it would seem, been a better time to be an appellee, since you’re winning 85% of the time at the writ stage, and even when the court grants a writ, you still win a fair amount of the time when the justices affirm. By my rough calculations, the raw probability of getting a civil judgment overturned, starting the day the trial judge enters the order, is about 9% – one appeal out of eleven.

Extraordinary writs

In addition to habeas corpus, Virginia law empowers the Supreme Court to consider two other extraordinary writs: mandamus and prohibition.

Just don’t get your hopes up. Each year since 2005, somewhere in the general vicinity of 90 such petitions have arrived in Richmond, but the grant rate each year is equal to Mr. Blutarsky’s grade-point average: zero point zero. Starting in 2005 and working backward, the court granted an average of about one such writ per year, but we’ve had nothing since then.

Other docket components

There are a few other case types on the justices’ docket from year to year: attorney- and judicial-discipline cases, SCC appeals, death-sentence reviews, cases certified from the CAV. The numbers of those are so small that, based on what I recall from my Statistics class in college, I don’t think it’s meaningful to include a statistical analysis of them. (I think I got an A- in Stats, which means you can trust me.)

Rehearings

There are two phases in which a losing appellate litigant can file a petition for rehearing. The first is after the denial of a writ. There’s really no drawback to filing a petition like that, so I was a little bit surprised to learn that only about 300 of them have been filed in each of the past two years. The justices granted 12 in 2014 and 10 in 2015, so the grant rate is between three and four percent. Those aren’t good odds, but if you don’t file a PFR, your chances of success are zero. You may as well try.

The second PFR type is after a decision on the merits. Far fewer of these are filed – an average of 27 per year over the past three years. Of those 81 petitions, the court has granted only one, and that was a whopper: RGR v. Settle in 2014. That gives the petitioners a dismal 1.2% success rate over that span. In what was probably an anomaly, the court granted rehearing at the merits stage four times in 2012, but don’t bank on seeing that again.

As I noted a while back in an essay about rehearings, there’s a fundamental difference between PFRs at the writ and merits stages. If you lose at the writ panel, only three justices (often including one of the senior justices) have seen your argument. By filing a PFR, you’ll have four or five new sets of eyes, and any one of those justices can grant your writ.

In contrast, after a decision on the merits, each of the justices has considered your arguments, and at least a majority of them have concluded that you lose. In most situations like that, you just need to accept defeat and move on. Only where you have a compelling reason – usually by pointing out that the court’s ruling will have unintended consequences for future cases – should you seek rehearing.